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From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 14 June 2012

The Kats' Parliament: before you lobbythem, you have to catch them ...

The IPKat often wonders whether Parliamentarians have second thoughts about their vocation as law-makers when they have to step aside from all the easy stuff like solving the world's economic problems (and sometimes even their own) and find themselves face-to-face with intellectual property law issues instead. Notwithstanding the wise old saw that there are no votes in intellectual property rights, some democratically elected politicians actually come quite close to both understanding and supporting them.

The following is what the Kat's informant describes as "what seem to be the interesting bits" from Tuesday night's Second Reading of the Enterprise
and Regulatory Reform Bill (the name isn't a deliberate attempt to camouflage the fact that this is something to do with IP; the Bill deals with lots of other non-IP bits too. The "interesting bits" are pasted below). He adds:

"Of the two copyright proposals in that Bill
most of the discussion concerned copyright exceptions. Vince Cable[the Coalition Government's Business Secretary] seems
to commit the government not to implement any changes to exceptions without
“full parliamentary scrutiny”, despite the fact that such changes could, in the
Intellectual Property Office's view, always have been made by Statutory Instrument (i.e. with limited scrutiny). But
the debate raises more issues than it disposes of:

What will the process be for amending exceptions?

What is full parliamentary scrutiny of a Statutory Instrument?

Will now only three aspects of the whole Hargreaves exercise be the subject of primary legislation, namely extended collective
licensing, orphan works and codes for collecting societies? (Note that
even those are “if we decide to proceed”).

Will those be dealt with by amendment to “the Bill”, i.e.
presumably the Enterprise Bill, as Cable appears to be suggesting, and has the
Government now given up on any of the more sweeping or grandiose changes to
copyright law which it ?

If the IPO is correct that section 2(2) of the European
Communities Act 1972 permits changes to exceptions to be made by Statutory Instrument, why stop
there? Why isn’t virtually the whole of copyright law – and indeed IP law
– now within that Act's definition of a “right enjoyed by the United Kingdom”
under the EU treaties and therefore to be dealt with by Statutory Instrument without the need for
“full Parliamentary scrutiny”?

Here are the "interesting bits":

Mr John Whittingdale (Maldon) (Con) [and chair of the All Party Parliamentary IP and Christmas Party Group]: Does the Secretary of State accept that copyright is the legal expression
of intellectual property rights, and is not a regulation? Is he aware of the
widespread concern among the creative industries about clause 56, which will
allow copyright to be amended by statutory instrument without full
parliamentary debate? Will he assure the House that the Government will not
change copyright in that way without proper parliamentary scrutiny?

Being responsible for the Government'sbusiness policy, Vince Cable has to provehe can count the fingers on both hands ...

Vince Cable: Yes, I can give
assurances on that. We will deal with this subject later, but I totally accept
the hon. Gentleman’s crucial point: intellectual property rights are a key part
of a market economy. They are not “regulation” in the pejorative sense in which
we normally refer to it—absolutely not; but we have to strike a balance between
access to information and copyright protection. We think we are striking the
right balance, and we are proceeding to implement the Hargreaves report, which
has many of those ideas at its heart. On a personal level, I introduced the
private Member’s Bill that strengthened criminal penalties for copyright theft,
so I have a long-standing interest in upholding that legislation.

…The sale of unauthorised
replicas of classic designs, such as a lamp or a piece of furniture, means that
firms that depend on design can lose out, so the Bill ensures that those
designs that are also artistic works and, therefore, qualify for copyright
protection will be protected for 70 years from the creator’s death, instead of
for the current 25 years [though it seems that hardly any works will benefit from this proposed amendment: see the Class 99 Blog here].

The Bill also creates an
order-making power that will allow the Government to make any future changes
related to copyright exceptions or exceptions to rights in performances. The
practical consequence of that will be to maintain the level of criminal
penalties, in which as I said earlier I have a personal interest, given that my
private Member’s Bill introduced the current maximum penalty level of 10 years’
imprisonment.

In addition, the Government have made a number of proposals in response to
the Hargreaves review of intellectual property and growth and subsequent
consultation. They are needed to ensure that the copyright system is fit for
purpose in the digital age. It has been decades since the intellectual property
regime was overhauled, during which time the world has changed beyond
recognition [this is not so, says Merpel: the IP regime has been rapidly evolving all round the world on a regular basis; the only thing that hasn't changed beyond recognition is the regrettable lack of understanding shown by many Members of Parliament concerning IP issues ...]. It would be negligent to leave unchanged a system suited to the
cassette recorder in an era of iPads and cloud-based music services [but that does not excuse changing the system unless you can show that the changes will make it better, not worse].

Primary legislation will be required
for three of those reforms: the introduction of a scheme to allow extended
collective licensing; one to allow the use of orphan works; and, finally, a
back-stop power to allow the Government to require a collecting society to
implement a statutory code of conduct, should it fail to introduce or adhere to
a suitable voluntary code.

Fed up with having other people speakingon their behalf, representatives of Britain'ssmall businesses capture a politician andtie him down so he has to listen to them ...

The Government’s proposals on
extended collective licensing and on the use of orphan works are designed to
make it simpler for users to use copyright works legitimately, while protecting
the interests of rights holders [judging by the experience in Canada, there's not going to be a quantum shift in our way of life; Merpel predicts that only a small number of people will bother to get licences, while most are likely to carry on infringing since it's the easiest thing to do]. At the same time, introducing codes of conduct
for collecting societies will provide valuable reassurance to the thousands of
small businesses and other organisations, including creators, that deal with
them [but who has heard this clamour of thousands of small voices...?].

The Government are finalising their
response to the consultation on those three proposals, and if we decide to
proceed we will want to move swiftly. The Bill presents an opportunity to do
so, and I shall announce a decision on the matter as soon as possible.

Geraint Davies: How does the strength
of law on copyright compare with that on patents? I am thinking of the
international duplication of a copyright, such as on a chair, as the Secretary
of State said, and how the law will be enforced internationally. [the last part of this question is something that has given a good deal of anxiety to small and medium-sized businesses when they discover that trade and manufacture are potentially global, their IP rights are not]

Vince Cable: I do not think that
there is any link between patents and copyrights in this case; they are
separate systems of law. The hon. Gentleman will know that in the European
Union there is already a unified approach to patents and to copyright, but we
are trying to ensure that in the UK context copyright protection is properly
enforced. That is the purpose of the changes before us.

Mr Whittingdale: The Secretary of State
will be aware that in the Hargreaves report a number of the proposals relating
to possible extensions of copyright exception are causing real concern in the
creative industries. Can he provide an assurance that they will be introduced
not by statutory instrument, but in proper, primary legislation?

Vince Cable: I am not going to give
the hon. Gentleman a very precise answer because I will need to check on the
exact legal position. I am aware of the concerns, and he is one of several
people who have expressed them. I will endeavour to reply to him in writing to
give him the precise answer to his question.

The IPKat says, the UK lawmakers speak about IP in the same clumsy and hesitant terms as a British schoolchild might try conducting a conversation in French or German: the right words are there, and the dialogue probably sounds more authentic to the people saying them than to those of us who are reading them -- but at least they're trying and it's up to us to do our bit to encourage them to keep doing so. And just as, in the case of schoolchildren, if you keep correcting them they get discouraged and give up, the same is likely to happen with lay legislators. We must strike the right note!

A katpat to Mark Owen (Harbottle & Lewis), for spotting this and letting the Kat know.

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